The 'Rarest of Rare' Doctrine: Why Yasin Malik Was Spared the Death Penalty

Yasin Malik is a Kashmiri separatist leader, former militant, and head of the Jammu Kashmir Liberation Front.

"...the manner of the commission of crime, the kind of weaponry used in the crime lead me to a conclusion that the crime in question would fail the test of rarest of rare case as laid down by Hon'ble Supreme Court," noted a special NIA court in their order sentencing Kashmiri separatist leader Yasin Malik to life imprisonment, and not the death sentence.

Malik was convicted in a Jammu and Kashmir terror funding case after he pleaded guilty to the charges against him.

Reliance was placed on two Supreme Court judgments – Bachan Singh vs State of Punjab and Machhi Singh vs State of Punjab – to conclude that the case does not call for capital punishment. Briefly, the grounds for not awarding him the death sentence were:

• Manner of the commission of the crime (a conspiracy) and the kind of weaponry used led the judge to conclude that Malik's crime would fail the test or rarest of rare cases.

• The death penalty should be awarded in exceptional cases where the crime is meted out with unmatched cruelty and in a gruesome manner, and the nature of the crime shocks the collective consciousness of the society.

• The court "cannot be swayed" by the NIA's contention that the court should consider that Malik was responsible for the alleged genocide and exodus of Kashmiri Pandits as the issue is neither before the court nor has been adjudicated upon.

But the judge did note that terror financing is "the backbone of terror activities" and the grave nature of the same should be recognised, and also that Malik's crimes were "intended to strike at the heart of the idea of India."

The court also refused to agree to his claims of having transitioned into a follower of Gandhian values of non-violence, observing that he had not expressed any regret for his crimes prior to 1994.

Who Is Yasin Malik?

Fifty-six-year-old Yasin Malik is a Kashmiri separatist leader, former militant, and the head of Jammu Kashmir Liberation (JKLF) – an organisation banned by the Ministry of Home Affairs under Section 3 of the Unlawful Activities Prevention Act (UAPA).

Malik, however, as noted by the court, "gave up the gun" in 1994, following which he is believed to have engaged in a dialogue with the government of India. Reports say that he was, at one point, removed as the head of JKLF due to his renunciation of violence and advocacy of peaceful means of protest.

In 2019, JKLF (Yasin faction) was banned by the government of India for "promoting" secession of the reorganised union territory.

He had also been accused by the NIA of orchestrating protests in 2016, during which 89 cases of stone-pelting were reported.

He pleaded guilty to all the charges (including those under the UAPA) in the case finally brought against him in the special NIA court – in connection with an attack on security forces in 2017 – in which he has now been awarded life imprisonment.

Yasin Malik's Sentencing

The sentence awarded by the special NIA court to Malik is as follows:

• Section 120B IPC (Punishment for criminal conspiracy): Imprisonment of 10 years and Rs 10,000 fine

• Section 121 IPC (Waging, or attempting to wage war, or abetting waging of war, against the Government of India): Life imprisonment

• Section 121A IPC (Conspiracy to commit offences punishable by Section 121): Imprisonment of 10 years and Rs 10,000 fine

• Section 17 of UAPA: Life imprisonment and Rs 10 lakh fine

• Section 18 of UAPA: Imprisonment of 10 years and Rs 10,000 fine

• Section 20 of UAPA: Imprisonment of 10 years and Rs 10,000 fine

• Sections 38 and 39 of UAPA: Imprisonment of 5 years and Rs 5,000 fine

All the sentences are slated to run concurrently. The judge also said that benefit of Section 428 of the Criminal Procedure Code shall be given to Malik. This means that the period of detention undergone by Malik up until now shall be set off against the sentence awarded to him.

So, Why Was Yasin Malik Not Given the Death Penalty?

Noting that according to past Supreme Court judgments, the twin objective of sentencing is deterrence and correction, the special NIA court said that "deterrence is in relation to the crime committed and correction is in relation to the criminal." The court then went on to add:

"I accordingly find that in the present case, the primary consideration for awarding sentence should be that it should serve as deterrence for those who seek to follow a similar path."

However, for the court, that meant awarding life imprisonment as opposed to the death penalty. In order to do so, the court placed reliance on the apex court judgments in Bachan Singh v State of Punjab and Machhi Singh v State of Punjab.

Bacchan Singh, Macchi Singh, and the Doctrine of 'Rarest of Rare'

The Supreme Court propounded the 'rarest of rare' doctrine in the landmark Bachan Singh case in 1980.

The doctrine simply states that the death penalty is an absolute, unique exception, and cannot be the rule (as compared to what was at one point the legal position in cases punishable with the death penalty). In keeping with this, it should only be awarded when life imprisonment is not an option by a far stretch, and there is no alternate remedy available.

Pointing out that capital punishment cannot be awarded in a routine manner or as a matter of rule merely because an offence provides for the same, the NIA court noted that the Supreme Court had said in the Bachan Singh case that:

• The death penalty need not be inflicted except in the gravest cases of extreme culpability.

• Before opting for the death penalty, the circumstances of the offender are also required to be considered along with the circumstances of the crime.

• Life imprisonment is the rule in serious cases and the death penalty is an exception.

• For arriving at a conclusion on the matter of sentencing, the court must consider the aggravating and mitigating circumstances in order to strike a just balance between aggravating and mitigating circumstances.

The special judge noted that the said principle was reiterated and further elaborated upon by the Supreme Court in Machhi Singh vs State of Punjab.

In Machhi Singh the court held that a 'rarest of rare' case may be when the collective conscience of a community is "so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty."

The top court further held that "the community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime."

"In the present case, the manner in which the crime was committed was in the form of conspiracy whereby there was an attempted insurrection by instigating, stone pelting and arson and a very large scale violence led to shut of the government machinery and ultimate secession of J&K from UOI," the special court noted.

Thereafter, the judge went on to say that both the manner of the commission of the crime and the kind of weaponry used led him to the conclusion that Malik's crime in question would fail the test of rarest of rare case.

As per the court order, the senior public prosecutor of the NIA had asked the court that they should keep in mind that Malik was "responsible for the genocide of Kashmiri Pundits and their exodus." The judge, however, stated:

"I find that as this issue is neither before this court, nor has been adjudicated upon and thus court cannot allow itself to be swayed by this argument."

Thus, the court in its order made it clear that even though they are of the opinion that the offence Malik has been convicted of is of a grave nature and warrants deterrence, his crime is not gruesome, shocking, and abhorrent enough to warrant the capital punishment. Simply put, it does not pass the test of the 'rarest of rare' doctrine.

(With inputs from PTI, The Week, and LiveLaw.)